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OBAMACARE AND “DEATH PANELS”: HEALTHCARE RATIONING IN HALACHAH – 1 Obamacare and “Death Panels”: Healthcare Rationing in Halachah One of the many controversial aspects of the revolutionary Patient Protection and Affordable Care Act (“Obamacare”) passed in 2010 was the emotionally charged question of rationing. With the government overseeing healthcare coverage, a federal agency (the Independent Payment Advisory Board) was to decide how the public funds allocated for healthcare should be used, and which medications and procedures should be covered and which should not. Passionate debates raged over the merits of this system, as well as the criteria that would be used to decide which treatments and medications would be federally reimbursed. Some critics of the program went so far as to claim that the system essentially invested a group of bureaucrats with the power to decide which patients would die and which would receive treatment. In the summer of 2009, former Vice Presidential candidate Sarah Palin ignited a firestorm when she accused the Affordable Care Act of establishing a “death panel” that would sentence some patients to die. On her Facebook page, she wrote: [G]overnment health care will not reduce the cost; it will simply refuse to pay the cost. And who will suffer the most when they ration care? The sick, the elderly, and the disabled, of course. The America I know and love is not one in which my parents or my baby with Down Syndrome will have to stand in front of Obama’s “death panel” so his bureaucrats can decide, based on a subjective judgment of their “level of productivity in society,” whether they are worthy of health care. Such a system is downright evil! Palin’s provocative claim was subject to much criticism and was lambasted by many for distorting the role of the aforementioned agency, but serves to highlight the passion to which this issue was discussed. In any case, it is clear that the question of what is a fair and equitable rationing of healthcare funds is a crucial subject that deserves careful analysis and consideration both from a public policy standpoint as well as from a halachic perspective. As the Affordable Care Act was a complex piece of legislation with many components, each worthy of analysis in and of themselves, this study will focus on a much more limited question: To what extent does the Torah hold us responsible to spend money to save another person’s life or health? BACKGROUND Headlines Halachic Debates of Current Events BY DOVID LICHTENSTEIN QUESTIONS TO CONSIDER Can you think of any sources that indicate an obligation to save another person’s life? Can you think of any situations in which this obligation might not apply? Do not stand by idly while your companion is killed; I am G-d. י ה׳.ִ נֲ אֶ עֵ ם רַ ל דַ ד עֹ מֲ עַ א תֹ לThe following source in the Torah teaches us the obligation to save others from life-threatening situations: Vayikra 19:16 THE OBLIGATION TO SAVE ANOTHER PERSON’S LIFE

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Page 1: BY DOVID LICHTENSTEIN Many Terrorists for One Israeli? The … › ncsy-education › Headlines - Obamacar… · OBAMACARE AND “DEATH PANELS”: HEALTHCARE RATIONING IN HALACHAH

OBAMAC ARE AND “DE ATH PANEL S”: HE A LTHC ARE R ATIONING IN HA L ACHAH – 1

Hurricane Sandy: Rescuing Those Who Put Themselves in Danger ◆ Stand Your Ground vs. Duty to Retreat: Would a Beis Din Have Convicted George Zimmerman? ◆ Reporting Child Molesters: מסירה or Obligation? ◆ Shooting Down a Hijacked Plane: Killing a Few to Save the Lives of Many ◆ Leiby Kletzky’s Killer: The Insanity Defense in Halachah ◆ Accepting Charity from Non-Jews ◆ Alternatives to Cattle Prods: In Search of a Solution to the Aguna Problem ◆ Therapy and Impropriety: Yichud with a Therapist ◆ Drafting Yeshiva Students: A Halachic Debate ◆ Many Terrorists for One Israeli? The Gilad Shalit Deal Through the Prism of Halachah ◆ A Kosher Cheeseburger? The Halachic Status of Synthetic Beef ◆ Webcams in Halachah ◆ Bernie Madoff: Must a Charity Return Funds Donated by a Ponzi Scheme to Investors? ◆ Hurricane Sandy: Rescuing Those Who Put Themselves in Danger ◆ Stand Your Ground vs. Duty to Retreat: Would a Beis Din Have Convicted George Zimmerman? ◆ Reporting Child Molesters: מסירה or Obligation? ◆ Shooting Down a Hijacked Plane: Killing a Few to Save the Lives of Many ◆ Leiby Kletzky’s Killer: The Insanity Defense in Halachah ◆ Accepting Charity from Non-Jews ◆ Alternatives to Cattle Prods: In Search of a Solution to the Aguna Problem ◆ Therapy and Impropriety: Yichud with a Therapist ◆ Drafting Yeshiva Students: A Halachic Debate ◆ Many Terrorists for One Israeli? The Gilad Shalit Deal Through the Prism of Halachah ◆ A Kosher Cheeseburger? The Halachic Status of Synthetic Beef ◆ Webcams in Halachah ◆ Bernie Madoff: Must a Charity Return Funds Donated by a Ponzi Scheme to Investors? ◆ Hurricane Sandy: Rescuing Those Who Put Themselves in Danger ◆ Stand Your Ground vs. Duty to Retreat: Would a Beis Din Have Convicted George Zimmerman? ◆ Reporting Child Molesters: מסירה or Obligation? ◆ Shooting Down a Hijacked Plane: Killing a Few to Save the Lives of Many ◆ Leiby Kletzky’s Killer: The Insanity Defense in Halachah ◆ Accepting Charity from Non-Jews ◆ Alternatives to Cattle Prods: In Search of a Solution to the Aguna Problem ◆ Therapy and Impropriety: Yichud with a Therapist ◆ Drafting Yeshiva Students: A Halachic Debate ◆ Many Terrorists for One Israeli? The Gilad Shalit Deal Through the Prism of Halachah ◆ A Kosher Cheeseburger? The Halachic Status of Synthetic Beef ◆ Webcams in Halachah ◆ Bernie Madoff: Must a Charity Return Funds Donated by a Ponzi Scheme to Investors? ◆ Hurricane Sandy: Rescuing Those Who Put Themselves in Danger ◆ Stand Your Ground vs. Duty to Retreat: Would

Obamacare and “Death Panels”: Healthcare Rationing in Halachah

One of the many controversial aspects of the revolutionary Patient Protection and Affordable Care Act (“Obamacare”) passed in 2010 was the emotionally charged question of rationing. With the government overseeing healthcare coverage, a federal agency (the Independent Payment Advisory Board) was to decide how the public funds allocated for healthcare should be used, and which medications and procedures should be covered and which should not.

Passionate debates raged over the merits of this system, as well as the criteria that would be used to decide which treatments and medications would be federally reimbursed. Some critics of the program went so far as to claim that the system essentially invested a group of bureaucrats with the power to decide which patients would die and which would receive treatment. In the summer of 2009, former Vice Presidential candidate Sarah Palin ignited a firestorm when she accused the Affordable Care Act of establishing a “death panel” that would sentence some patients to die. On her Facebook page, she wrote:

[G]overnment health care will not reduce the cost; it will simply refuse to pay the cost. And who will suffer the most when they ration care? The sick, the elderly, and the disabled, of course. The America I know and love is not one in which my parents or my baby with Down Syndrome will have to stand in front of Obama’s “death panel” so his bureaucrats can decide, based on a subjective judgment of their “level of productivity in society,” whether they are worthy of health care. Such a system is downright evil!

Palin’s provocative claim was subject to much criticism and was lambasted by many for distorting the role of the aforementioned agency, but serves to highlight the passion to which this issue was discussed.

In any case, it is clear that the question of what is a fair and equitable rationing of healthcare funds is a crucial subject that deserves careful analysis and consideration both from a public policy standpoint as well as from a halachic perspective. As the Affordable Care Act was a complex piece of legislation with many components, each worthy of analysis in and of themselves, this study will focus on a much more limited question: To what extent does the Torah hold us responsible to spend money to save another person’s life or health?

BACKGROUND

HeadlinesHalachic Debates of Current Events

BY DOVID LICHTENSTEIN

QUESTIONS TO CONSIDER

■ Can you think of any sources that indicate an obligation to save another person’s life?

■ Can you think of any situations in which this obligation might not apply?

Do not stand by idly while your companion is killed; I am G-d. .לא תעמד על דם רעך אני ה׳

The following source in the Torah teaches us the obligation to save others from life-threatening situations:

Vayikra 19:16

THE OBLIGATION TO SAVE ANOTHER PERSON’S LIFE

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Do not stand by watching idly as your friend’s ox or sheep wanders away; rather, return them to your friend. If your friend is not close by and you do not know who [to return them to], you should bring [the lost object] into your house and keep it with you until your friend comes looking for it, and then you should return it to him.

לא תראה את שור אחיך או את שיו נדחים והתעלמת מהם השב תשיבם לאחיך. ואם לא

קרוב אחיך אליך ולא ידעתו ואספתו אל תוך ביתך והיה עמך עד דרש אחיך אתו והשבתו לו.

However, a second source for this obligation exists as well, based on a verse teaching the mitzvah of hashavas aveidah, returning a lost object:

Devarim 22:1-2

Where is the source that if you see your friend either drowning in a river, being dragged by a wild animal, or attacked by bandits, you must save him? It is the verse, “Do not stand by idly while your companion is killed...” (Vayikra 19:16)

[The Gemara questions:] Is that halachah really derived from this verse? It would seem there is a different source, as seen in the following beraissa [in the context of returning a lost object]:

If one is in danger of losing himself [lit. losing his body], what is the source that there is a mitzvah to return “it” to him? “And you should return it to him…” (Devarim 22:2) [The same verse that teaches us the mitzvah of hashavas aveidah, returning a lost object, teaches us that we must also return a person’s lost “self.”]

[The Gemara is hence left with a question: We seem to have two sources which both teach us the same thing. Why do we need both?]

[The Gemara answers:] If we only had the source [written by hashavas aveidah], I would have thought one only needs to rescue his friend alone, [thereby returning his friend’s “lost” life] but would not need to go out of his way to hire other people to help him. [The verse of “Do not stand by idly while your companion is killed,” however,] teaches us that one is obligated even to spend money to rescue his friend’s life.

גופא: מנין לרואה את חברו שהוא טובע בנהר

או חיה גוררתו או לסטין באין עליו שהוא חייב להצילו? תלמוד לומר

״לא תעמד על דם רעך.״ והא מהכא נפקא?

מהתם נפקא: אבדת גופו מניין? תלמוד לומר: ״והשבתו לו!״ אי מהתם הוה אמינא: הני מילי –

בנפשיה, אבל מיטרח ומיגר אגורי – אימא לא,

קא משמע לן.

The one who was saved is obligated to repay his savior for any money the savior laid out to save him. This is because a person is not obligated to save his friend’s life using his own money, if that friend has money of his own that can be used.

והניצול חייב לפרוע למציל מה שהוציא. דאין אדם מחויב להציל נפש חבירו בממונו היכא דאית ליה ממונא לניצול. כדאמר לקמן )דף עד

א( נרדף ששיבר את הכלים של רודף פטור. של כל אדם חייב ואם היה מחויב להציל את הנרדף בממונו א״כ יפטור משבירת הכלים שהרי ממון

חבירו מחויב להציל וברשות שברם כדי להנצל.

How does this latter source relate to saving someone’s life? The Gemara explains:

Talmud Bavli Sanhedrin 73a

As this Gemara explains, the Torah provides two distinct sources for the obligation to rescue another person’s life:

■ One verse commands us to “return” another person’s “lost” life;

■ The other verse forbids us from standing by idly when another person is being killed.

Due to this second source, the Gemara rules that not only is one obligated to save another person’s life, but he is even obligated to “put in effort to hire others” to save that person. But what precisely does this mean? And what is the extent of this obligation? The Rosh elaborates:

The Rosh on Sanhedrin 8:2Rabbi Asher ben Yechiel (1259–1327)

In discussing the requirement to save a human life, the Rosh notes that when a person spends money to rescue his fellow from danger, the rescued individual is obligated to repay his savior, “for a person is not obligated to rescue his fellow’s life with his own money, if the rescued person has money of his own.” This line implies that the basic obligation to pay money to rescue another person from danger applies even if the beneficiary will be unable to repay the money spent to save him.

SEE THIS ORIGINAL PAGE OF TALMUD ON THE NEXT PAGE

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OBAMAC ARE AND “DE ATH PANEL S”: HE A LTHC ARE R ATIONING IN HA L ACHAH – 3

TALMUD BAVLI SANHEDRIN 73A

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OBAMAC ARE AND “DE ATH PANEL S”: HE A LTHC ARE R ATIONING IN HA L ACHAH – 4

If a person lacks an esrog, or the material to perform any other mitzvah (and the mitzvah opportunity will pass), he is not obligated to spend endless amounts of money to purchase it. As Chazal say: “One who spends money [on a mitzvah] should not spend more than one-fifth of his possessions,” even if the window to perform the mitzvah will pass.

However, this only applies to positive commandments. But in order to avoid violating negative commandments, a person must spend all his money rather than violate such Biblical prohibitions.

ומי שאין לו אתרוג, או שאר מצוה עוברת, א״צ לבזבז עליה הון רב, וכמו שאמרו: המבזבז אל יבזבז

יותר מחומש, אפילו מצוה עוברת; ודוקא מצות עשה, אבל לא תעשה

יתן כל ממונו קודם שיעבור.

It appears to me that once a person has hired someone to save his companion, he can demand to be reimbursed for whatever money he laid out. For the Torah only obligates one to put in the effort to hire saviors, but one is not obligated to actually give up his own money to save his fellow. This can be derived from the fact that the Gemara mandates putting in effort to hire a savior, but does not mandate actually give up one’s own money to do so.

מפרקינן אי מהתם הוה אמינא הני מילי היכא דיכיל לאצולי בנפשיה כלומר על ידי עצמו אבל מיטרח מיגר אגירי לאצוליה אימא לא

מיחייב למיטרח איצטריך לא תעמוד על דם רעך כלומר לא תעמיד עצמך כלל אלא חזר אחר הצלתו ובכל ענין שאתה יכול להצילו.

ומסתברא לן דהיכא דטרח ואגר אגורי ואצליה שקיל מיניה דעד כאן לא חייביה רחמנא אלא למטרח בלהדורי בתר אגירי אבל לאצוליה

בממוניה לא מדאמרינן אי מהתם הני מילי בנפשיה אבל מטרח ומיגר אגירי לא קמ״ל ולא אמרינן אבל בממוני׳ לא קמ״ל.

The Yad Ramah notes that the Gemara requires a Jew only to go through the trouble of hiring someone to rescue the person in danger – but not to actually spend money. Thus, in his view, one is not required to incur a financial loss for the sake of rescuing his fellow.

Although this is an interesting proposition, it seems that the consensus among the halachic authorities is to follow the view of the Rosh, who maintains that one is indeed required to spend money to rescue his fellow. Even though the rescued person must repay his savior, the savior must pay the necessary expenses even if he knows he will never be reimbursed.

This inference is made by the Chavos Yair, Rav Yair Bacharach (1639–1702) who observes that this rule is indeed the consensus among the poskim – one must rescue his fellow from danger even if the money used to do so will never be repaid.

However, the Chavos Yair proposes a reason why this rule might not necessarily be true: Just as one is not required to pay out of his own pocket for the sake of honoring his parents, perhaps one is likewise not obligated to spend money for the sake of rescuing his fellow from danger. This possibility proposed by the Chavos Yair is actually the view taken by the Yad Ramah.

Yad Ramah: Sanhedrin 73aRabbi Meir Abulafia (1170–1244)

In discussing of the laws of arba minim (4 species) used on Sukkos, the Rema lays down the general rule concerning the maximum one is required to spend to do a mitzvah:

Rema’s glosses on the Shulchan Aruch: Orach Chaim 656:1Rabbi Moshe Isserlis (1520–1572)

The Rema writes that when it comes to a mitzvas aseh (a positive Biblical command), one is not required to spend more than one-fifth of his assets to fulfill the mitzvah. When it comes to avoiding the violation of a mitzvas lo ta’aseh (a negative command or prohibition), however, a person must give away all of his money to avoid such prohibitions.

HOW MUCH MUST ONE PAY?

QUESTIONS TO CONSIDER

■ What should be the implications of this ruling for communal healthcare policy?

■ Given that one is required to spend money to save a life, how far does this requirement go? Must a person give up all of his money to save another person’s life – surrendering all of his wealth and thrusting himself into poverty for the sake of saving his fellow?

■ If not, then what is the maximum expense one is required to incur for this purpose?

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On the other hand, perhaps the Rema really intended to make a different distinction. One could argue that his distinction between positive commands and negative commands is not to be taken at face value; it is really an attempt to distinguish between Biblical commands requiring a particular action (in halachic terminology known as kum v’aseh) and those which require refraining from a certain action (often called sheiv v’al ta’aseh). If so, then although the Torah formulates the requirement to rescue one’s fellow from danger in the form of a negative prohibition (“Do not”), nevertheless, for the purposes of this distinction, it qualifies as a positive command, since it requires a person to get up and do something active to save the person in danger. As such, it should require an expenditure of no more than one-fifth of one’s assets.

Indeed, the Chasam Sofer, Rabbi Moses Sofer (1762–1839) writes that one is not required to spend all of his money for the sake of this mitzvah, since it is a mitzvah requiring an action, as opposed to forbidding a certain action.

On the other hand, the Rivash (Rabbi Yitchak ben Sheshet, 1326–1408) explicitly takes the approach reflected in the simple reading of the Rama. Hence, the Rivash rules that one must spend all of his money to save his fellow’s life.

Other authorities, however, use a different angle to determine whether or not one must spend all of his money to save a life. The Chofetz Chaim (Rabbi Yisroel Meir Kagan, 1839–1933) in his sefer Ahavas Chessed, draws a fascinating proof from a Gemara in Bava Metzia:

Talmud Bavli: Bava Metzia 62a

Two people are traveling together, and one of them has a flask of water. If they split it, they’ll both die. If one of them drinks it, he’ll survive long enough to reach civilization, [while his companion will perish. What should they do?]

Ben Petura originally ruled: It is better for them to split the water between them and die, rather than have one of them witness his companion’s death.

Until R. Akiva came along, and taught: The verse, “And your brother shall live along with you” (Vayikra 25:36) implies that chayecha kodmin, your own life takes precedence over that of your companion. [Hence, the owner of the water should drink all of it, since his own life takes precedence.]

שנים שהיו מהלכין בדרך, וביד אחד מהן קיתון של מים, אם שותין

שניהם – מתים, ואם שותה אחד מהן – מגיע לישוב. דרש בן פטורא:

מוטב שישתו שניהם וימותו, ואל יראה אחד מהם במיתתו של חבירו.

עד שבא רבי עקיבא ולימד: וחי אחיך עמך – חייך קודמים לחיי חבירך.

SEE THIS ORIGINAL PAGE OF TALMUD ON THE NEXT PAGE

AN ALTERNATE UNDERSTANDING OF THE REMA

AN ENTIRELY DIFFERENT APPROACH: CHAYECHA KODMIN

When applying this rule to the mitzvah of saving one’s fellow from danger, we might instinctively conclude that it is a negative commandment, because the Torah’s prohibition is written in a negative form, as, “Lo saamod al dam reiecha – Do not stand by idly while your companion is being killed” and it is also included in the Rambam’s list of negative commandments. If this mitzvah is indeed a negative commandment, then the Rema’s rule would state that one would be required to spend any amount of money necessary to rescue his fellow and avoid transgressing this prohibition.

QUESTIONS TO CONSIDER

■ Can you think of any different way to understand the Rema’s rule?

QUESTIONS TO CONSIDER

■ Is the mitzvah to save a life considered a positive commandment, or a negative commandment?

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TALMUD BAVLI BAVA METZIA 62A

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THE PRACTICAL APPLICATION

This was also the view taken by Rav Yisrael Salanter (1810–1883), in his Even Yisrael (Derush 4, p. 16), where he writes that even in situations of possible risk to life, one is required to spend all he has in order to rescue a person in danger.

It emerges from these sources that whereas the Chasam Sofer and others maintain that one need not spend more than one-fifth of his assets for the sake of saving a life, numerous poskim, including the Chofetz Chaim, the Rivash, Rav Yaakov Emden, and Rav Yisrael Salanter, maintain that one must indeed spend all he has.

It is reported that Rav Yosef Shalom Elyashiv (1910–2012) followed the first view, that one is only required to spend up to one-fifth of his assets to rescue his fellow Jews from danger. In contrast, Rav Shlomo Zalman Auerbach (1910–1995) (Minchas Shlomo, Vol. II. 7:4), distinguished between situations in which someone sees his fellow in immediate danger – such as when a person is drowning – and cases of people who are known to be in dire straits in a general sense. In the former case, one is required to spend all he has to rescue his fellow, but in situations of ill patients and the like, we require only that each person contribute his share toward the collective effort of saving those in danger. Rav Shlomo Zalman concludes, however, by questioning this line of reasoning, as this distinction seems to be unfounded.

It seems to me that when there are poor people overcome by hunger who are at risk of dying of starvation, then even a person who only has enough for his own livelihood must share his money, and keep for himself only the bare minimum that he needs to sustain himself, until he reaches a place where there are Jews to support him [the rich man], or he must go around begging. This applies even according to Rabbi Akiva, who taught that “your life takes precedence to your fellow’s life.”

נ״ל דכשיש עניים עטופים ברעב שיש לחוש שימותו ברעבון אפילו מי שאין לו אלא כדי פרנסתו צריך לחלק

להם מה שבידו ולא ישאיר לעצמו רק כדי חייו עד שיגיע למקום שישראל מצויים שיפרנסהו או שיצטרך

לחזור על הפתחים אפילו לרבי עקיבא שלימד חייך קודמין לחיי חברך.

QUESTIONS TO CONSIDER

This position gives rise to the obvious question of how any Jew is permitted to enjoy a respectable livelihood, as there are unfortunately always fellow Jews in dire straits due to poverty or illness! It would seem that according to most authorities, we are all required to spend all of our money to save them! Are we really required to spend all of our money at all times?

Until now, we have focused on an individual’s obligation to rescue his fellow from danger, determining to what extent this mitzvah requires one to spend money for the sake of rescuing a life.

When seeking to determine the halachic guidelines relevant to establishing public healthcare policy, however, there is another critical factor to consider – namely, the limits of the communal obligation. Even if we accept the view that an individual is required to spend all of his money for the sake of rescuing a life, this does not necessarily authorize policymakers to tax the public as much as is needed to provide healthcare for gravely ill patients. As we will see, a number of sources speak of limits to the imposition of taxes even for life-saving causes, implying that the concern for preserving human life must be weighed against the concern for the public’s financial welfare.

DUCHKA D’TZIBURA: THE LIMITS OF THE COMMUNAL OBLIGATION

The Gemara here rules that if someone has a flask of water – and by drinking it he will be able to live but his friend will perish – he should drink the water himself rather than giving it to his fellow. This is based on the idea of “chayecha kodmin – your own life takes precedence over your fellow’s life,” when there is no way for both of you to survive together.

The Chofetz Chaim points out that the Gemara here only says “chayecha kodmin – your life takes precedence” – which implies that only a person’s life, but not his property or finances, takes precedence over the obligation to save his fellow’s life. Even though one need not forfeit his life to rescue his fellow, he must indeed forfeit his money to save his fellow.

Similarly, Rav Yaakov Emden writes:

Responsa of the Yaavetz 1:63Rabbi Yaakov Emden (1697–1776)

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OBAMAC ARE AND “DE ATH PANEL S”: HE A LTHC ARE R ATIONING IN HA L ACHAH – 8

If a community is impoverished – especially at a time when the Jews are subjugated to the nations of the world – the impoverishing of the community is regarded as pikuach nefesh (saving lives)…

...דלא אמרה הר״ן אלא ביחיד שצריך לבזבז כל ממונו ולהטיל עצמו על הציבור להתפרנס מן הצדקה ולא יעבור על ל״ת אבל ציבור הנדחק ובפרט

בזמן שאו״ה תקיפים על שונאי ישראל הוי דוחקא דציבורא בכלל פיקוח נפש כמ״ש הרא״ש פ״ק דב״ב וכמ״ש בש״ע י״ד סי׳ רנ״א בסופו.

Obviously, the above comments were made regarding a Jewish community, but they force one to consider what would be the case for a secular government as well.

Applying this theory to a public healthcare system, it would appear that compelling the public to forgo basic financial stability for the benefit of those suffering from life-threatening conditions would qualify as duchka d’tzibura, an exorbitant burden on the community. This is all the more true if providing such healthcare would make doctors unavailable for the vast majority of the population, should they need to spend all their time only on the most extreme cases. Even if we assume that an individual must give all he has for the sake of rescuing a life, the public welfare is considered pikuach nefesh (a matter of life and death) and should not be crippled for the sake of rescuing a few individuals.

In fact, it is reported that a Health Minister of the State of Israel posed this question to Rav Elyashiv, who ruled that the government’s funds are the property of the public, who are not obligated to forgo on their rights to proper healthcare for the sake of the small number of seriously-ill patients.

QUESTIONS TO CONSIDER

■ Why do you think this limitation of duchka d’tzibura exists? What do you think the Chassam Sofer means when he says “impoverishing a community is considered pikuach nefesh”?

■ What are the implications of this ruling for the question of whether or not the public must collect money to provide healthcare for thousands of individuals?

The Mishna (Gittin 45a) forbids ransoming captives for more than their value because of “tikkun ha’olam – concern for the public welfare.” The Gemara proposes two possible explanations for what tikkun ha’olam means in this context: One of these explanations is that such redemptions impose too heavy a financial burden upon the Jewish community, known as duchka d’tzibura. In other words, there is a limit to the expense the community must incur for the sake of redeeming a fellow Jew from captivity. According to this, a community should not be pushed beyond reasonable financial limits even for a cause as important as pidyon shevuyim (redeeming captives). Thus, even according to the view that an individual is required to give all of his money to save a life, the public is not required to impoverish itself for this purpose. As the Chasam Sofer explains:

Responsa of the Chasam Sofer Vol V. (Choshen Mishpat) 177Rabbi Moshe Sofer (1762–1839)

APPLICATION TO PUBLIC HEALTHCARE

Mishna: It is forbidden to redeem captives for more than their fair worth, out of concern for the public welfare (tikkun ha’olam)…

The Gemara asks a question: When the Mishna states that this halachah is designed for the public welfare, what does that mean? Is it expressing a concern for the community’s finances, that it is unfair for the community to pay exorbitant amounts of money to redeem captives? Or is it that paying exorbitant amounts will only encourage future kidnappings?

מתני׳. אין פודין את השבויין יתר על כדי דמיהן, מפני תיקון העולם...

גמ׳. איבעיא להו: האי מפני תיקון העולם – משום דוחקא דצבורא הוא, או דילמא משום דלא לגרבו

ולייתו טפי? ת״ש: דלוי בר דרגא פרקא לברתיה בתליסר אלפי דינרי זהב. אמר אביי: ומאן לימא לן דברצון

חכמים עבד? דילמא שלא ברצון חכמים עבד.

SEE THIS ORIGINAL PAGE OF TALMUD ON THE NEXT PAGE

Most famously, the Mishna in Gittin (45a) establishes that a community should not ransom Jewish captives for an unreasonably exorbitant sum (yoseir al k’dei d’meihen):

Talmud Bavli: Gittin 45a

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OBAMAC ARE AND “DE ATH PANEL S”: HE A LTHC ARE R ATIONING IN HA L ACHAH – 9

TALMUD BAVLI GITTIN 45A

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OBAMAC ARE AND “DE ATH PANEL S”: HE A LTHC ARE R ATIONING IN HA L ACHAH – 10

DISC L A I M ER:The views and opinions presented in this sourcesheet should not be taken as halachah l’maaseh.

Before applying these halachos to real-life situations, one must consult with a competent halachic authority.

■ As we have seen, it is clear from the Gemara that every Jew has an obligation to save another Jew’s life, even if it means laying out money in the process.

■ The Rosh and the Rema debate whether or not one must lay out money even if he knows that he will never get paid back. The vast majority of halachic authorities follow the Rosh’s view that one must indeed lay out money in such a case.

■ Given that one needs to spend money to save another’s life, the poskim dispute how much money must be spent. Some say that one must spend only up to one-fifth of their possessions, while others say that there may be no limit to how much one must spend.

■ That said, there is also a mitigating concept of duchka d’tzibura, meaning that there may be limits to how much the community as a whole is obligated to pay (even to save lives), as it precludes the community from having funds available for future causes which may be even more pressing and essential.

The Affordable Health Care Act was a complex piece of legislation, which can be analyzed and discussed from many different angles. This packet focused on just some of the many controversial ethical dilemmas that must be taken into account when considering this piece of legislation.

CONCLUSION